Tag Archives: preponderance

The Office of Civil Rights’ mandated procedures for
investigating sexual assault are tilted heavily against the accused party. The
institution can hire “neutral fact-finders” who produce the equivalent of a
grand jury presentment, deny the accused an advisor of his choice, add
witnesses that the accused student does not request, forbid the students from
cross-examining his witnesses, and judge the student according to a 50.00001
percent preponderance of evidence standard, an approach that mocks even the
pretense of due process.

It is remarkable, then, that one such accused student at
the University of Virginia was exonerated of the charges brought against him.
Unfortunately, what happened next was unsurprising.

The accuser hired an outside attorney–none other than controversial
victims’ rights lawyer Wendy Murphy–and filed a complaint with the Office of
Civil Rights. Murphy’s argument, as expressed to c-ville.com, comes close to
saying that a failure to convict amounts to an OCR violation. “The preponderance standard is simple,”
she told the newspaper. “When her accusations are deemed credible, and his
denials are not described with the same glowing terminology, she wins.” But
under the UVA system, the investigators (serving as the equivalent of a grand
jury) have the authority to deem an accuser’s claims “credible.” For the
OCR even to consider such an absurd claim would be highly problematic.

The second disturbing element of this story comes from
the article itself. Penned by Graelyn Brashear, the article often appears as
little more than a press release for Murphy. Even though the accuser publicly
reiterated her allegations through a posting on Murphy’s facebook page–which
Brashear notes, was “widely
circulated among students,” c-ville.com kept her identity secret.

Nor does Brashear
inform her readers about what the UVA procedure actually entails. Beyond
referencing the shift toward a preponderance of evidence standard (which the
reporter comes close to celebrating, describing universities lacking the
standard as “holdout schools,” even as she notes concerns from FIRE and the
AAUP), Brashear doesn’t reveal that accused students can’t have an attorney
cross-examining witnesses, that the university considers the equivalent of a
grand jury or the police as “neutral,” or that the university is willing to
abandon even a circumscribed right to cross examine regarding some witness
statements. Given that most people outside the academy (indeed, most academics)
have little knowledge about the details of campus due process, it seems likely
that readers of Brashear’s article came away with the belief that the campus
judicial system resembles not the Kafka-like system envisioned by the OCR but
instead the Law and Order rules that
most citizens at least somewhat understand.

Most troubling, here’s how
Brashear described Murphy: “Wendy Murphy, an adjunct professor at the New
England School of Law and a frequent media commentator on issues of women’s
rights, has a reputation as a firebrand. ‘I’m an activist with my feet in the
courts,’ she said. Her battle cry is blunt: ‘The law is designed to facilitate
and perpetuate violence against women and children,’ she said.”

Virginia is a member of the ACC, and, of course, Murphy
has some experience with handling allegations of sexual assault at an ACC
school. In the Duke lacrosse case, the ubiquitous media commentator repeatedly
made false statements of fact about the case (nearly 20 of them in 2006 alone)
coupled with myriad unsubstantiated claims and bizarre interpretations of law.
These statements weren’t made in secret–and they received widespread attention,
including from the American Journalism
Review.

Yet Brashear mentions none of this, and instead treats
Murphy as a wholly credible figure. Imagine, for instance, if the intro
paragraph had at least acknowledged that Murphy had a record of playing fast
and loose with the truth on claims of campus sexual assault: “Wendy Murphy, an adjunct professor at the
New England School of Law and a frequent media commentator on issues of women’s
rights, has a reputation as a firebrand, although in at least one high-profile
campus matter, the Duke lacrosse case, she repeatedly misstated both factual
items and questions of law, always in such a way that favored the accuser in
that case.”

Such a portrayal, it seems,
isn’t what cville.com thinks its readers should receive.

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.